UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
DAVID COLE, )
)
Plaintiff, )
)
v. ) Civil Action No.
) 15-1991 (EGS)
1
KENT B. ROCHFORD, et al., )
)
Defendants. )
___________________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff David Cole seeks records from the Federal
Emergency Management Agency ("FEMA") under the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552. Although Mr. Cole
submitted his request in May 2011, FEMA failed to produce any
documents until April 2016, approximately five months after Mr.
Cole filed this lawsuit. Since that time, FEMA has produced
responsive records and a Vaughn index, and the parties have made
efforts to narrow the areas of dispute remaining between them.
Unable to make further progress, but before either party had
filed a motion for summary judgment, Mr. Cole filed the instant
motion for leave to take limited discovery. See Pl.'s Mot. for
1 Pursuant to Federal Rule of Civil Procedure 25(d), the
Court substitutes as defendant the Acting Director of the
National Institute for Standards and Technology, Kent B.
Rochford, for former Director of the National Institute for
Standards and Technology, Willie E. May.
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Discovery ("Pl.'s Mot."), ECF No. 15. As explained more fully
below, Mr. Cole's motion for discovery is denied.
I. BACKGROUND
A. Plaintiff's FOIA Request
On May 20, 2011, plaintiff David Cole submitted a FOIA
request to FEMA for certain documents related to the collapse of
World Trade Center buildings on September 11, 2001. See Compl. ¶
9, ECF No. 1. Specifically, Mr. Cole requested "all background
or raw data used for the FEMA 403 Building Performance Study"
regarding the World Trade Center buildings, "including
photographs, video, audio, field notes, memoranda, lab samples,
and lab results." Id.
B. The Government's Efforts to Respond to Plaintiff's
FOIA Request
FEMA acknowledged receipt of Mr. Cole's request six days
after receiving it, and the agency advised Mr. Cole that it had
"queried the appropriate component of FEMA for responsive
records." See Pl.'s Mot. Ex. 9, ECF No. 15-14. On December 23,
2011, FEMA sent Mr. Cole a letter explaining that, while it had
been unable to locate any responsive records, it understood that
the information sought by Mr. Cole was "under the purview of the
National Institute of Standards and Technology ("NIST")." Pl.'s
Mot. Ex. 6, ECF No. 15-11. FEMA therefore transferred Mr. Cole's
FOIA request to NIST for processing. Id. On June 29, 2012, NIST
confirmed that it had searched for records responsive to Mr.
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Cole's request and had determined that 3,789 pages of records
were releasable in whole or in part. Pl.'s Mot. Ex. 7, ECF No.
15-12.
On August 30, 2012, FEMA notified Mr. Cole that it had
approximately 490,000 pages of boxed records pertaining to the
World Trade Center in storage at the National Archives and
Records Administration ("NARA"). Pl.'s Mot. Ex. 8, ECF No. 15-
13. Although the inventory of those records did "not readily
indicate any additional responsive material," FEMA explained
that Mr. Cole could "submit a new FOIA request if [he] was
interested in searches being conducted on these records." Id.
Having not received any documents from either FEMA or NIST,
Mr. Cole filed this lawsuit on November 12, 2015. See Compl. ¶
23, ECF No. 1; Pl.'s Mot. Ex. 5 ¶ 8, ECF 15-10. FEMA finally
produced documents in April 2016, almost five years after Mr.
Cole submitted his FOIA request. See Second Joint Status Report
at 1 (June 7, 2016), ECF No. 9. Mr. Cole reviewed the records he
received and, on June 7, 2017, sent an email to defendants'
counsel identifying "a preliminary list of responsive records,
and in some cases individually identifiable responsive records,
not provided" to him in FEMA's production. Pl.'s Mot. Ex. 1 at
1, ECF No. 15-3. For example, Mr. Cole noted that a document
produced by FEMA "show[ed] that a set of WTC7 drawings was sent
. . . to FEMA contractor Gilsanz Murray Steficek" but that those
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drawings were not produced by FEMA. Id. Mr. Cole also pointed to
an inventory of records transferred from FEMA to NIST which
listed CDs and drawings that he believed were responsive to his
FOIA request but had not been produced. Id. at 1-2.
The government responded to Mr. Cole's email on August 23,
2016. See Pl.'s Mot. Ex. 2, ECF No. 15-7. With respect to the
CDs and video Mr. Cole had specifically inquired about in his
June email, FEMA explained that it had been "unable to locate
any additional drawings" in its search for responsive records.
Id. at 1 (emphasis added). With respect to drawings and other
documents requested by Mr. Cole, FEMA explained that it had
"been unable to locate" those records "in a search of the
materials in the Disclosure Branch, where the documents returned
by NIST have been retained because of Mr. Cole's FOIA requests."
Id. at 1-2. FEMA further stated that the requested materials
"may be available in [FEMA Region 2's] Regional off site
archives" and that the agency would be "willing to send two of
its personnel to the warehouse to perform a reasonable search"
for the records. Id.
Mr. Cole agreed that FEMA should conduct a search of its
Region 2 archives and proposed that, if the records were not
found, FEMA should "explain how it could be that these records .
. . cannot be found, and state what happened to them." Pl.'s
Mot. Ex. 3, ECF No. 15-8. Approximately six weeks later, FEMA
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responded that, "[a]fter consulting with the [subject-matter
expert], it was determined that there is no FEMA Region 2
archive and the responsive records were not sent to the NARA
archives." See Pl.'s Mot. Ex. 4 at 2-4, ECF No. 15-9. FEMA
explained that this was its "final response" and that no
additional records would be produced. Id. at 1.
C. Plaintiff's Request for Discovery
On March 27, 2017, Mr. Cole filed the instant motion for
leave to conduct limited discovery. See Pl.'s Mot., ECF No. 15.
Mr. Cole argues that discovery "is appropriate in a FOIA action
when it is apparent that the Defendant agency had not provided
complete disclosure of the records responsive to the plaintiff's
FOIA request." Pl.'s Mem. in Supp. of Pl.'s Mot. at 2, ECF No.
15-1. According to Mr. Cole, the Court should allow discovery
"regarding the nature and scope of Defendants' records searches
(or lack thereof)" here because Mr. Cole has "presented evidence
that raises serious doubt about . . . whether Defendants have
made a complete disclosure and conducted an adequate search."
Id. at 8.
Mr. Cole further argues that FEMA's responses to his FOIA
request "raise serious questions regarding whether Defendants'
search for and production of documents . . . has been in good
faith." Id. at 10. For example, Mr. Cole points to FEMA's
"completely off point" statement that it was unable to locate
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"additional drawings" in response to Mr. Cole's inquiry about
CDs and a video. Id. In addition, Mr. Cole asserts that FEMA's
responses raise questions as to whether it "engaged in blatantly
inadequate search efforts" and whether it had "complied with
FOIA's mandate that the agency conduct a reasonable search for
the records in electronic form or format." Id. at 14-15.
Based on these allegations, Mr. Cole seeks leave to conduct
limited discovery pursuant to a joint discovery plan that he
intends to submit after consultation with government counsel.
Id. at 20. As part of this limited discovery, Mr. Cole requests
that the Court grant him leave to take "at least some
depositions" because "[d]epositions have the greatest potential
for determining the adequacy of Defendants' search efforts and
why key records have not been produced." Id.
II. LEGAL STANDARD
It is well established that discovery is rare in FOIA
cases. See, e.g., Harrison v. Fed. Bureau of Prisons, 681 F.
Supp. 2d 76, 80 (D.D.C. 2010) ("'[d]iscovery is not favored in
lawsuits under the FOIA'") (citation omitted); Thomas v. Food &
Drug Admin., 587 F. Supp. 2d 114, 115, n.1 (D.D.C. 2008)
("discovery is an extraordinary procedure in a FOIA action").
Indeed, in the FOIA context, courts have permitted discovery
only in exceptional circumstances where a plaintiff raises a
sufficient question as to the agency's good faith in searching
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for or processing documents. See, e.g., Citizens for
Responsibility & Ethics in Washington v. U.S. Dep't of Justice,
No. 05-CV-2078, 2006 WL 1518964, at *3-6 (D.D.C. June 1, 2006)
(permitting discovery in a FOIA action where the government
engaged in extreme delay); Landmark Legal Found. v. E.P.A., 959
F. Supp. 2d 175, 184 (D.D.C. 2013) (ordering discovery in a FOIA
action on the question of whether senior administrators used
personal emails for official business and whether the EPA
excluded key officials from their initial search); see also
Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312,
318 (D.C. Cir. 2006) (district court properly denied plaintiff's
discovery request where plaintiff "offered no evidence of bad
faith to justify additional discovery"). Discovery may also be
appropriate if agency affidavits "do not provide information
specific enough to enable [the plaintiff] to challenge the
procedures utilized." Weisberg v. Dep't of Justice, 627 F.2d
365, 371 (D.C. Cir. 1980).
A district court has "broad discretion" in denying
discovery in FOIA cases. Beltranena v. Clinton, 770 F. Supp. 2d
175, 187 (D.D.C. 2011). In determining whether limited discovery
may be appropriate, a court typically evaluates an agency's
affidavits regarding its search; where such affidavits are
"reasonably detailed" and "submitted in good faith," discovery
is ordinarily denied. See SafeCard Servs., Inc. v. S.E.C., 926
7
F.2d 1197, 1200 (D.C. Cir. 1991); Pinson v. U.S. Dep't of
Justice, 55 F. Supp. 3d 80, 82 (D.D.C. 2014). Because an agency
usually submits these affidavits in support of its summary
judgment motion, courts generally do not allow discovery in FOIA
actions until after the government has moved for summary
judgment. See, e.g., Taylor v. Babbitt, 673 F. Supp. 2d 20, 23
(D.D.C. 2009) ("in the exceptional case in which a court permits
discovery in a FOIA action, such discovery should only occur
after the government has moved for summary judgment"); Murphy v.
F.B.I., 490 F. Supp. 1134, 1136 (D.D.C. 1980) ("Whether the
instant case warrants discovery is a question of fact that can
only be determined after the defendants file their dispositive
motion and accompanying affidavits.").
III. ANALYSIS
Based on the facts above, Mr. Cole has raised significant
questions as to whether FEMA has processed documents in good
faith in response to Mr. Cole's FOIA request. Indeed, the Court
is troubled by multiple aspects of the government's actions at
issue here. Mr. Cole submitted his FOIA request in May 2011 but
did not receive any documents until after he filed this lawsuit
almost five years later in April 2016. This is all the more
concerning given that NIST had determined that it possessed
3,789 pages of responsive records by the end of June 2012.
The Court is also troubled by the government's
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inconsistent, even contradictory, responses to Mr. Cole's
inquiries regarding his FOIA request. For example, FEMA
initially represented that it had located 490,000 pages of
potentially responsive records in storage at NARA. See Pl.'s
Mot. Ex. 8, ECF No. 15-13. Later, FEMA also represented that
potentially responsive records may be located in regional
offsite archives. Pl.'s Mot. Ex. 2, ECF No. 15-7. But in its
final response, FEMA stated that no such archives existed and
that it had been unable to find any additional responsive
documents. Pl.'s Mot. Ex. 4, 15-9. In this correspondence, FEMA
nowhere provided a clear explanation as to its changing position
regarding the availability of additional records.
Despite these concerns, the Court concludes that discovery
is premature at this juncture. Discovery in FOIA cases is the
exception, and it is generally limited to cases in which factual
disputes persist – for example, where "the adequacy of the
[agency's] search remains in doubt." Weisberg v. U.S. Dep't of
Justice, 627 F.2d 365, 371 (D.C. Cir. 1980). Although that may
indeed be the case here, because the government has not yet
moved for summary judgment – and therefore has not submitted any
declarations setting forth details related to its search for
documents responsive to Mr. Cole's request – the Court does not
have sufficient information to determine whether a genuine
factual dispute exists or whether Mr. Cole requires additional
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facts essential to oppose the government's motion. Therefore,
the Court cannot determine at this time whether discovery is
warranted and, if it is, how it should be limited in scope. See,
e.g., Murphy v. F.B.I., 490 F. Supp. 1134, 1137 (D.D.C. 1980)
("In the instant case, the government has yet to file its
affidavits. The plaintiff therefore cannot possess the
prescience to predict whether a factual issue will emerge.").
Once the government moves for summary judgment, Mr. Cole
may renew his motion for discovery if he is able to show "by
affidavit or declaration that, for specified reasons, [he]
cannot present facts essential to justify [his] opposition" to
the government's motion. See Fed. R. Civ. P. 56(d); Taylor v.
Babbitt, 673 F. Supp. 2d 20, 23 (D.D.C. 2009) ("The plaintiff
claims that without this information, he will be unable to
effectively oppose a potential motion for summary judgment made
by the defendants. The appropriate mechanism for the plaintiff
to seek such relief, however, is through a Rule [56(d)] motion
filed after the government submits its renewed motion for
summary judgment."). Moreover, if Mr. Cole believes that FEMA's
declarations are insufficient to show that its search was
adequate, he may oppose the government's motion for summary
judgment on that ground. If the Court agrees with Mr. Cole, it
may reconsider Mr. Cole's request for discovery at the summary-
judgment stage. See Leopold v. Nat'l Sec. Agency, No. 14-CV-
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0919, 2015 WL 12964654, at *1 (D.D.C. Feb. 20, 2015) (explaining
that an argument that an agency's affidavits are deficient is
often "best presented in the context of an opposition to
Defendant's motion for summary judgment or as a cross-motion for
summary judgment, rather than as a basis for seeking
discovery"); North v. U.S. Dep't of Justice, 729 F. Supp. 2d 74,
77–78 (D.D.C. 2010) (explaining that "if Plaintiff believes that
the declarations submitted by [the agency] are inadequate to
establish that the agency's searches were adequate," plaintiff
should "explain his argument in his opposition" to the agency's
summary-judgment motion).
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that [15]
Mr. Cole's motion for discovery is DENIED. It is FURTHER ORDERED
that the parties shall submit a joint status report with a
recommendation for further proceedings, including, if
appropriate, a proposed schedule for briefing on summary
judgment, by no later than January 22, 2018.
SO ORDERED.
Emmet G. Sullivan
United States District Court
January 3, 2018
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